State v. Meacham11/7/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
Appellant Wes Meacham was charged in CR-20002009 with aggravated driving while under the influence of an intoxicant (DUI) while his driver's license was suspended and resisting arrest. Based on the same incident, he was subsequently charged with another count of DUI in CR-20003569, and the two causes were consolidated. A jury found appellant guilty of all charges. After he admitted that he had one prior felony conviction and that he had committed the offenses while he was on pretrial release, the trial court sentenced him to mitigated, concurrent prison terms, the longest of which was five years. On appeal, he contends his due process rights were denied because the judge who presided over his trial was not fair and impartial. We affirm.
Appellant did not appear on the second day of trial. The judge told the jury that " or whatever reason... Mr. Meacham is not here this morning. All I can tell you is this, is that Mr. Meacham does not have to be in court if he doesn't want to." The judge added that the jury was not to hold appellant's absence against him. As appellant points out, his attorney did not object at the time, but appellant suggests the court's comments implied that he had absconded.
Also during trial, while Deputy Sheriff Murphy was testifying, the trial court interrupted and explained to the jury the "admin per se/implied consent" affidavit the deputy had signed. Appellant objected on the ground that the judge was testifying on behalf of the state and requested a mistrial. While appellant was cross-examining Deputy Murphy about whether the shirt appellant had been wearing was close fitting, the trial court judge interjected, "Depends on the tank top." Although the judge then declared a recess and the witness never answered the question, appellant did not object.
Appellant contends these incidents reflect that the trial judge was not impartial but, rather, that he was acting on behalf of the state. Appellant argues that the judge abandoned his role as a jurist by acting in favor of the state. See State v. Carver, 160 Ariz. 167, 173, 771 P.2d 1382, 1388 (1989). Relying on Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302, 331 (1991), and Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), appellant argues that, because he was deprived of his right to have a fair, unbiased judge preside over his trial, he was deprived of a fair trial generally, characterizing the resulting error as structural and, therefore, not subject to a harmless error review. We disagree.
It is presumed that a trial judge is unbiased. State v. Henry, 189 Ariz. 542, 546, 944 P.2d 57, 61 (1997); see also State v. Rossi, 154 Ariz. 245, 247, 741 P.2d 1223, 1225 (1987). The party challenging a trial judge's impartiality must overcome this strong presumption by "proving 'a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the litigants.'" State v. Cropper, 205 Ariz. 181, , 68 P.3d 407, (2003), quoting In re Guardianship of Styer, 24 Ariz. App. 148, 151, 536 P.2d 717, 720 (1975). When a party seeks to remove a judge from a case for bias or prejudice, the party is required to "set forth a specific basis for the claim of partiality and prove by a preponderance of the evidence that the judge is biased or prejudiced." State v. Medina, 193 Ariz. 504, , 975 P.2d 94, (1999).
We disagree with appellant that the trial judge demonstrated bias and prejudice when he commented on appellant's absence from trial. Rather, it appears the court was actually trying to
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